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Abstract

In recent years, an increasing number of scholars and commentators have turned their attention to the criminalization of migration in the United States. These scholars have focused largely on the incorporation of criminal law methodologies into the realm of civil immigration enforcement and adjudication. In contrast, this Essay centralizes the criminal prosecutions of migration-related offenses. Part I describes the ways in which the regulation of migration has increasingly become a subject of the criminal law, and discusses the explosion of migration-related criminal prosecutions over the past few years. Part II provides several examples of the use of criminal prosecutions in the migration context in order to explore an undertheorized effect of this trend, namely, that the protective features of criminal investigation and adjudication are melting away at the edges in certain criminal cases involving migration-related offenses. As these examples make clear, not only are we seeing what Stephen Legomsky has termed the asymmetric incorporation of criminal justice norms into civil removal proceedings, but we are also witnessing the importation of the relaxed procedural norms of civil immigration proceedings into the criminal realm.